Free Speech & K-12 Private Schools

UPDATE - My daughter has since killed off the websites that had her cartoons, so the links below are junk. I blogged some of her cartoons here, with narrative.

In 1977, David Berkowitz was murdering people in New York City (busted when he got to six). Upon his capture and subsequent disposition, the New York State legislature wrote what was known as the “Son of Sam” Act (N.Y.Exec.Law 632-a (McKinney 1982 and Supp. 1991); the law served as a model for 41 other states as they following suit on the concept. The pressing issue was that David Berkowitz, the “Son of Sam” killer was rumored to have been in negotiations to sell the rights to his heinous acts, thereby making a profit from deviance. The newly enacted NYS law required the receivers of monies under contract with a criminal, that is, generally, the publishing house, to turn over any payments due to a person such as Berkowitz to the Crime Victims Compensation Board. The monies would be paid to bona fide victims of the criminal, and any funds left after five years would be released to the criminal.

Berkowitz never went forward with his plans to sell his rights and profit from the sale. Even if he did, the statute would not have applied to him – it applied to convicted criminals, and Berkowitz was deemed too insane to stand trial, hence no conviction (he was eventually sentenced following a plea). Henry Hill, a quasi-Mafia thug, however, did sell his rights post-conviction. The result was, in part, the movie “Goodfellas.” NYS took his profits and placed them in escrow, all pursuant to the Son of Sam law. Hill fought the taking to the U.S. Supreme Court.

Former SCOTUS Justice Sandra Day O’Conner wrote the majority opinion in Simon and Schuster, Inc. v. New York Victims Crime Board, 502 U.S. 105 (1991), which tossed the Son of Sam law as an unconstitutional infringement on free speech. The determining factor was that the law quashed speech based upon its content. If, for example, Henry Hill wrote gardening books, that income was left untouched by the statute. Only the income derived from the words about his crimes was subject to seizure.

Thou shall not condemn speech based purely upon content. Place and manner are important.

The statute, of course, was a government action. The First Amendment curtails government action. Governments run the public school system, so many constitutional freedoms including free speech likewise are ripe for discussion in that arena.

Tinker v. Des Moines Independent Community School District (1969 – you can find your own cites now!). In December 1965, Des Moines, Iowa, public school principals adopted a policy that students who wore black armbands to protest U.S. involvement in the Vietnam War would be asked to remove the armbands and suspended if they refused. A suspension would not be lifted until the student returned to school without the armband. Students ignored the policy and were indefinitely suspended from school. Two high school students and one junior high school student brought suit against the school district, arguing that the principal’s actions violated their First Amendment right of free speech.

Specifically, the Court held, [i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Further, “[i]n our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are “persons” under our Constitution. They possess fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.

“[I]f he does so without materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school, and without colliding with the rights of others. . . . [C]onduct by the student, in class or out of it, which for any reason--whether it stems from time, place, or type of behavior-- materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.”

Ah, so again – Thou shall not condemn speech based purely upon content. Place and manner are important.

But how does this standard apply to private schools, that is, schools not “owned and operated” by the government?

As a general statement, there is a fundamental distinction between public and private school students under the First Amendment. The First Amendment and the other provisions of the Bill of Rights limit the government from infringing on an individual's rights. Public school officials act as part of the government and are called state actors. As such, they must act according to the principles in the Bill of Rights. Private schools, however, aren’t arms of the government. Therefore, the First Amendment does not provide protection for students at private schools.

Does that mean that private schools can stomp on the constitutional rights of its students with impunity? Apparently.

My daughter, until a few days ago, attended a Christian school. I got a call from the pastor running the school on Sunday evening around 7:30 PM – Jourdaine is not longer welcome at our school, effective immediately.

Gee, thanks for the reaction time. How professional of you.

The cause? Cartoons. (Where's an angry Muslem when you need him? Oh yeah, they didn't like cartoons either. I guess that is kinda sorta like the school's position. When did cartoons become the basis for hate in this world?). Her cartoons and my stated support for her pushing the limits of free speech. Parent the deviance you see. Push it down and Freud will tell you about sublimation, and how that deviance will just pop up somewhere else – only out of your parental sight.

But, but the Golden Rule of free speech: Thou shall not condemn speech based purely upon content. Place and manner are important.

Where were these cartoons? On the internet! Not on school premises. Not circulated or advertised on school premises. Well, then, how, pray tell did the link get established? What a great question!

Seems my daughter was asked by another student during study hall (horrors!) what she wanted for her 16th birthday. “Cheap vodka and strippers,” she said. Rather humorous. Well, enter Peyton Place Volunteer Mom!

Peyton Place Volunteer Mom investigates my daughter on the net and finds her cartoons horrors!). Peyton Place Volunteer Mom rushes into the school and tells everyone that will listen – or at least the pastor! "Run for the hills!" Peyton Place Volunteer Mom says, "run for the hills! There be a non-conformist amongst us! Run, run, I tell you! She is evil and dresses differently! Burn the witch! Bring out the dead! Hang the rich! That little vixen whore must die because I haven't had an orgasm in ... ever! I don't even think orgasms exist! And if they do they are evil! Devil's worship! Oh, I want one so badly. I've tried everything from organic produce to the dog ... oh, wait, did I say that outloud!?! Horrors! Shame be onto me! Where's the device? I must administer a cold vinegar enema immediately! Out of my way, whorelots! I'm coming through! Can't find the device. Hey boy, you using that soda bottle? Yeah, the one with the long neck. I need it. Thanks. Bless you." Two minutes later, in mumbled tones. "Oh, yes, deeper, now out, now back in. Ohhhh, deeper!"

Phone call to me from pastor, discussion of parenting known versus unknown deviance, strong letter that followed condemning the shallowness of Peyton Place Volunteer Mom (specifically leaving out the Diet Pepsi-Cold Vinegar-Buggary issue), Board meeting, and viola! Instant and permanent expulsion! High five! (In fairness, I just read "the letter" which contained a decided difference in word choice: withdrawn by mutual agreement.)

But wait! Hold the presses! Does the private religious school take any government money? That would certainly get government hands into the mix somehow. Let’s see … school buses … taxpayer financing … yes! Government money supporting the school! School buses too weak an argument. Everyone treated the same - public, private, secular, non-secular.

Think, think, think … how can this translate to Constitutional freedoms in out-of-school activities remaining a non-basis for expulsion? Hmmm …

In higher education, college students receiving assistance under the federal Basic Educational Opportunity Grants program (BEOG) subject the college to the provisions of Title IX, which bars sex discrimination by institutions receiving “federal financial assistance.” The U.S. Supreme Court so ruled in Grove City College v. Bell in 1984.

While Grove City is accepted by many as proof that government funding leads to government control, a different perspective was provided by the late William Bentley Ball, an expert on this subject who argued 10 cases before the U.S. Supreme Court.

“[I]n enacting the BEOG program,” explained Ball, “[Congress] had expressly declared that a specific purpose of the BEOGs was in fact to ‘provide assistance to institutions of higher education.’ Further, the Court said that Congress had specifically intended Title IX requirements to be closely tied to the BEOG statute.”

Thus, the Court did not hold that government-funded student aid justifies government regulations, but said this particular form of aid was meant for institutions.

Yet, in Grove City, SCOTUS ruled that any college or university is to be considered a recipient of government money – and therefore subject to government regulation of its financial aid program – if even one of its students receives a federal loan or grant. And on top of that, Congress subsequently passed the so-called "Civil Rights Restoration Act," to extend federal regulation over all of these schools' programs, if even one student uses federal money to attend them.

So institutions of higher education can feel the reach of some government oversight if their students accept financial aid. But what about K-12? Vouchers! Maybe vouchers?

SCOTUS has cleared the way for vouchers with its 2002 decision in Zelman v. Simmons-Harris, which held that voucher programs that allow students to attend religious schools do not violate the First Amendment. So government money can find its way to K-12, and even to religious schools. Getting warmer …

It seems always true that government money means government control. In the long run, private schools won’t be so private at all, or much different from the government schools to which they were intended to provide an alternative. Every available historical example makes it clear that when government provides money for something, government expects control over that thing; it’s happened with higher education in this country, and it’s happened with primary and secondary education around the world. (Around the world? Why do we care about evolving standards around the world? My children, remember when we vacated the juvenile death penalty laws because of France?)

But couldn’t some private schools turn down vouchers? They could, but there would be strong financial incentives against doing so, when all of their competitors will take them. In higher education, only two schools (Grove City College and Hillsdale College) have had the balls to turn down government funds and avoid government control. Why would we expect things to be any different for primary and secondary education?

So, government money will open the door to regulation. Will the regulation mean that out-of-school activities cannot become a basis for in-school action, provided the out-of-school activity does not disrupt the classroom? Eventually, yes. Patience, Pooh, patience.

Golden Rule – Thou shall not condemn speech based purely upon content. Place and manner are important.